Game and Technology loses appeal at CAFC

The outcome was affirmance:


Game and Technology Co. (GAT) appeals the final written decision of the
Patent Trial and Appeal Board, ruling
that institution of inter partes review was not barred under
35 U.S.C. § 315(b) and that claims 1–7 of U.S. Patent
No. 7,682,243 would have been obvious over the asserted
prior art. Under the facts of this case, and as argued by the
parties, the Board did not err in holding that petitioner
Wargaming Group Ltd. was not properly “served with a
complaint alleging infringement of the [’243] patent” more
than one year before it filed its IPR petition. Accordingly,
the IPR was not barred under § 315(b). Because substantial evidence
supports the Board’s determination that
claims 1–7 of the ’243 patent would have been obvious over
the asserted prior art, we affirm.



As to the time-bar issue:


We review the Board’s legal conclusions de novo
and its fact findings for substantial evidence. Bennett Regulator
Guards, Inc. v. Atlanta Gas Light Co., 905 F.3d 1311,
1314 (Fed. Cir. 2018). With respect to the Board’s procedural or
administrative decisions, our review is limited to
ensuring that they are not “arbitrary, capricious, an abuse
of discretion . . . otherwise not in accordance with law . . .
[or] unsupported by substantial evidence.” Personal Web
Techs., LLC v. Apple, Inc., 848 F.3d 987, 992 (Fed. Cir.
2017) (quoting 5 U.S.C. § 706(2)(A), (E)). The IPR petitioner bears the
burden of persuasion to demonstrate that
its petitions are not time-barred under § 315(b). Worlds
Inc. v. Bungie, Inc., 903 F.3d 1237, 1242 (Fed. Cir. 2018).


(...)

The Board cannot strictly rely on a district court’s determination of
proper service because district courts rarely make such determinations. Indeed, where the parties do not challenge
service, a district court might never determine whether
service was proper or whether the defendant waived its defense of improper service.
Section 315(b) does not itself define what it means to
be “served with a complaint.” As we indicated in Click-ToCall, the Board can look to multiple sources to discern the
meaning of “served.” 899 F.3d at 1330. Rule 4 of the Federal Rules of
Civil Procedure establishes the basic requirements for service in a federal court. See generally Fed. R.
Civ. P. 4. Other sources include the ordinary meaning of
“served,” as well as common law interpreting Rule 4. See,
e.g., 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1083 (4th ed. 2019)
(noting that “[t]he general attitude of the federal courts is
that the provisions of Federal Rule 4 should be liberally
construed”); King v. Taylor, 694 F.3d 650, 655 (6th Cir.
2012) (explaining that the service requirement is satisfied
by proper service of process, consent, waiver, or forfeiture
by the defendant (first citing Murphy Bros., Inc. v. Michetti
Pipe Stringing, Inc., 526 U.S. 344, 350 (1999), then citing
Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97,
104 (1987))).

(...)

In its interpretation of § 315(b), the Board properly
looked to Rule 4 as a starting point for its analysis of
whether GAT’s complaint had been served. However, it is
presumed that Congress knows the universe of common
law interpreting a statutory term and that, absent any indication to the contrary, Congress intends to adopt the
common law interpretation of the term when using identical language in later-enacted statute. See Cannon v. Univ.
of Chi., 441 U.S. 677, 696–98 (1979). We therefore agree
with GAT that the Board’s conclusion that it lacked authority to consider the propriety of service under Rule 4 and
common law interpreting Rule 4 was incorrect. Aside from
the Board’s general statement, however, we see no error in
the Board’s analysis, particularly given GAT’s failure to
raise certain arguments on appeal.
GAT’s opening brief devotes seven pages to the timebar issue. Of those pages, almost six address GAT’s principal argument that “[c]ompliance with the time-bar requirement is a condition precedent to institution of an IPR,
and thus a decision should have been rendered before institution of the IPR requested by Wargaming.” Appellant’s
Br. 21. While we agree with GAT that issues related to the
time bar should ordinarily be decided prior to institution,
we note that GAT would only have been harmed by the
Board’s decision to institute if the IPR was in fact timebarred. The gravity of this purported error is thus entirely
dependent on the merits of GAT’s substantive time-bar arguments. See Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct.
2131, 2153 (2016) (noting that courts need not “throw out
an inter partes review decision whenever there is some
technical deficiency in the . . . Patent Office’s institution
decision” and that “errors that do not cause a patent owner
prejudice may not warrant relief.” (citing 5 U.S.C. § 706)).
For at least this reason, we decline GAT’s invitation to find
error in the Board’s process.



Of note:


Like
certain shapeshifting characters in Dungeons & Dragons,
GAT’s evolving arguments are difficult to track. Indeed, at
oral argument, counsel for GAT appeared to retract its reliance on Rule 4(d),
explaining that GAT was merely contending that the UK service and Cyprus service complied
with the Hague convention. See Oral Arg. at 1:38–6:36. As
noted above, however, GAT did not develop these arguments in its opening brief. Because GAT did not preserve
its specific arguments for why service was proper, we cannot conclude that the Board erred in its determination that
Wargaming’s petition was not barred by § 315(b).